SENATOR RUBEN DIAZ, SR: I’d like to know if my colleagues in the New York State Senate – especially those who consider themselves purists – plan to do to something to Senator Kevin Parker now that he has been convicted of two misdemeanors. Will Senators Schneiderman, Breslin, Savino, Liz Kruger, and others rally for justice twice as loud as they did when Hiram Monserrate was found guilty of one misdemeanor?
Will Senator Schneiderman be consistent and show us what a true hero he thinks he is by starting the same kind of Senate action he organized to kick Hiram Monserrate out for his one misdemeanor?"
I’d like to know what their plans are now.
HACKSHAW: Sampson cannot allow one disciplinary standard for Monseratte and another (different) for Parker. If he does he will damage relations between black and Hispanic electeds for a long time to come. I suspect that his leadership skills are going to be tested again real soon.
I pretty much published did this same piece months ago to tumultuous apathy in the aftermath of Kevin Parker‘s acquittal on felony charges and his conviction for two misdemeanors. .
Now, with Parker’s sentencing, the topic has suddenly become ripe again and the analysis made at the time bears repeating, with a few updates.
If Senator Parker had been convicted of a felony, whether or not to expel him from the senate would not be a topic for discussion.
Parker would have been be removed from the legislature by operation of law.
But instead, like Hiram Monserrate before him, he was convicted only of misdemeanors.
That did not stop the Senate from expelling Monserrate.
Senator Diaz is right that, with the inquiry it held upon Hiram Monserrate’s misdemeanor conviction, the Senate set a precedent, which overturned the prior Senate procedure in such cases, which was basically to do nothing.
At the time and after much debate, the Senate Dems very reasonably decided that the Senate was not bound by its own prior lax precedents.
Though, in the light of subsequent events, it is hard to remember this, a big part of the campaign which helped the Senate Dems achieve their long sought after Majority status was a call for a change in the Senate’s ethical climate.
Though once they assumed office, the actual efforts at reform by the Sen Dems proved largely disappointing, and the ethical climate fairly egregious, it is clear that the Sen Dems ran on the idea that the old rules would be re-examined and subjected to change. The fact that decades of Republican controlled Senates turned a blind eye to the misdemeanors of their membership (and that of the Democrats) did not bind a Democratically controlled Senate which had ostensibly and ostentatiously committed itself to change.
But elections have consequences, and one of this is that policies can change.
If the Senate, now controlled by Republicans, decided to go ahead with an inquiry concerning the potential expulsion of Senator Parker, they would essentially be admitting that the Democrats were right and they were wrong for all those years.
Much to my surprise, someone realized this and Dean Skelos has already indicated his inclination not to conduct an inquiry in the matter of Parker.
This may not be a moral position, but it might at least seem a consistent one.
At least it would be, were it not for the fact that every single Republican in the Senate voted to expel Monserrate.
Perhaps stung by the criticism he’s gotten here and elsewhere for the inconsistency of his calling for Hiram Monserrate’s expulsion before he was even indicted, and his complete silence about his buddy Carl Kruger, Marty Golden seems poised to lead a conference revolt in favor of conducting a Parker inquiry.
But if Golden is trying to put his best face forward, others seem less concerned. Democratic supporters of the Monserrate expulsion like Neil Breslin seem just as keen as the Republicans to repeal the last two years.
I think Hackshaw and Diaz have a point. How the Monserrate case was handled now establishes a Senate modus operandi on how to properly and fairly handle such incidents. If Breslin and Skelos found that precedent so upsetting they should have spoken up a year ago.
There should be an inquiry.
However, I disagree with both Senator Diaz and Mr. Hackshaw about what the Senate’s precedent requires. In actuality, the Senate’s precedent would seem to require only that the Senate convene an inquiry, as it did with Monserrate.
The purpose of the inquiry would be to decide whether the circumstances justified expulsion.
But, contrary to Hackshaw and Diaz, the whole process of convening an inquiry PRESUMES by its very nature that not every misdemeanor conviction would necessarily require an expulsion.
If it did, why do the inquiry?
John Sampson, who convened the Monserrate inquiry would seem to agree with that last point; after all, even though he himself did convene such the Monserrate inquiry, after the Select Committee rendered its report, Sampson voted AGAINST expelling Monserrate.
Further, while under the Senate’s precedent, conviction should trigger an inquiry, when one actually reads the document produced by the Select Committee which handled the inquiry, one is most impressed by how little the conviction itself mattered in the Committee’s findings.
Implicit in those findings were two very different conclusion. The first was that not all misdemeanor convictions would necessarily require the forfeiture of office; the second was that some non-criminal conduct might.
Behold: From the REPORT OF the New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction of Hiram Monserrate on October 15, 2009:
"The Select Committee concludes and believes that sanctions against Senators should only be imposed in cases of serious misconduct. Expulsion should be considered only in the most egregious circumstances. Having considered the available evidence and evaluated the facts relating to the conduct that provided the basis for Senator Monserrate’s conviction, the Select Committee finds that this case is serious enough to warrant a severe sanction. In doing so, we are mindful that ultimately, the voters of Senator Monserrate’s district, where he plans to run for re-election, will decide whether or not he is returned to office…
…The Select Committee finds that the nature and seriousness of Senator Monserrate’s conduct, as demonstrated by the surveillance video and the other unrebutted evidence outlined in this Report, showed a reckless disregard for Ms. Giraldo’s well-being and for the severity of her injury. We therefore find, that under the particular facts and circumstances presented here, Senator Monserrate’s misconduct damages the integrity and the reputation of the New York State Senate and demonstrates a lack of fitness to serve in this body.
The Select Committee notes that its determinations are based on the totality of the facts and circumstances surrounding Senator Monserrate’s overall conduct, not on the fact of his misdemeanor conviction. The Committee has determined that Senator Monserrate’s conduct in this case presents particular factors that support the imposition of the sanctions set forth above. Specifically, the Select Committee gave substantial weight to the following factors:
First, Senator Monserrate’s assault on Ms. Giraldo was a crime of domestic violence, and therefore in direct contravention of New York’s well-established "zero-tolerance" policy in such matters…
Second, …the Select Committee finds that Ms. Giraldo and Senator Monserrate’s statements about the events of December 18 and 19, 2008 are not credible.
Third,…Senator Monserrate has failed to accept responsibility for his misconduct, or to cooperate in any way with the work of the Select Committee."
Anyone reading the Select Committee Report would understand that its recommendations would have been the same even if Monserrate had been convicted of nothing.
Moreover, the mere fact of a misdemeanor conviction for a crime other than the one committed would have not necessarily yielded the same recommendation.
Frankly, I think a Parker inquiry should have taken place months ago.
The inquiry which should have taken place should not have touched upon the criminal charges concerning Parker, since such an inquiry would have interfered with his due process rights, not allowing him to fully participate in his trial, by putting his Fifth Amendment rights into issue (Though in the end, he chose, as was his right, not to testify at his trial anyway).
The inquiry which should have taken place, should have concerned Parker's non-criminal but inappropriate conduct in the performance of his official duties.
For purposes of this discussion, let’s consider the Parker timeline.
In 2005, Parker was charged with misdemeanor assault for allegedly punching a traffic agent in the face. The charges were eventually dismissed, but only after Parker agreed to take an anger management class.
In 2009, Parker allegedly had a physical altercation with a Capitol parking attendant, though no charges ever came of it (Could the attendant have been worried about his job?).
Shortly thereafter, Parker was arrested for the incident for which he’s just been sentenced, and charged with felony level assault of a New York Post photographer.
In June 2009, during the Senate‘s "Times of Troubles," State Senate Republicans said they might file criminal and ethics charges against Parker for allegedly threatening one of their lawyers.
Attorney John Conway said he was on the Senate floor when Parker, who then already faced felony assault charges, tried to disrupt a farcical Republican-controlled Kabuki proceeding which was disrupting the Democrat’s similar commedia d’ell arte.
According to Conway, "He said to me, 'What are you looking at, punk? Do you know who I am and don't you read the newspaper, punk?"
Conway was intimidated. I guess he read the papers.
But Conway shouldn’t feel the victim of excessive partisanship, for Parker seems far harsher with Democrats than Republicans. Remember, Parker’s staffer worked for a Democrat.
Then, there was the matter of our Governor.
This was during the time Parker was making clear in no uncertain terms his complete contempt for David Paterson, his joy at Paterson’s dismal re-elections prospects, and his desire to be well rid of Paterson (and who can really blame him for holding such sentiments?).
Then, Parker gilded the lily by calling Paterson "a coke sniffing, staff-banging Governor."
Well, perhaps Parker's never considered the fact that there‘s something to be said for banging with your staff, rather than banging at them.
For hours, Parker stood by his words, and then, after cooler heads with bigger muscle prevailed, Parker changed his mind.
Parker’s statement of contrition began with these poignant word:
"My conduct today was reprehensible and regrettable. I apologize…"
Parker could save himself a bit of time and money if he just had those words pre-printed in the boilerplate on his press release paper.
Certainly, this would have helped during the Senate’s handling of L’affairre Monserrate.
Not unexpectedly, Parker found expelling a Senator convicted of a violent misdemeanor to be a frightening prospect.
Still, he went above and beyond the call of duty with his conduct in the Senate Democratic Conference meeting leading up to the Monserrate expulsion vote.
In an incident no one denies, and for which Parker has since apologized, Parker is said to have charged towards State Senator Diane Savino during a Senate Democratic Conference meeting set up to discuss the potential Monserrate expulsion.
Parker is said to have taken several steps toward Savino (D-S.I.) as the two argued over Monserrate‘s expulsion.
Senator Parker apparently used the word ‘fuck," a word not unknown to Senator Savino’s vocabulary, or necessarily offensive to her delicate sensibilities. Parker is also said to have called her a "bitch," which may have offended her far more than would the word "fuck."
Rock Hackshaw has also raised the possibility of Parker’s use of the "C" word as well, but there is no verification of this, so why raise potentially false rumors when the truth will suffice?
According to one witness, Savino attempted to explain why Monserrate would be immediately expelled with Republican votes, and Parker "went a little ballistic, swearing and screaming that the Republicans have no right to dictate what goes on in our house."
In a moment fraught with irony, three opponents of immediate expulsion, Eric Adams, Ruben Diaz, and Carl Kruger – started yelling and egging Parker on.
And I thought it would be a cold day indeed when Ruben Diaz and Carl Kruger started to complain about Republicans dictating what went on in the New York State Senate.
Maybe, their objection was to the Republicans doing so without their own personal cooperation.
Savino then apparently told Parker to stop interrupting her, followed by the exchanged of reciprocal "Fuck yous."
Parker is then said to have stormed at Savino.
Senate Jeffrey Klein then jumped up. Parker responded by swearing at Klein and asking, "Do you want a piece of me?"
"If that's what it takes to stop this," Klein answered, while Parker was held back by John Sampson.
Then there was the time Parker blew a gasket (minutes 19-23 on the attached video) during a confirmation hearing being conducted by the Senate Finance Committee.
Parker objected to the way Republican Senator John DeFrancisco was treating a nominee to the Power Authority, Mark O’Luck, who was not only black, but who had made some strong and controversial statements in favor of affirmative actions programs.
Parker described DeFrancisco’s treatment of the nominee as "racist."
Some may object to the substance of Parker’s remarks here; I will leave that be.
In the year 2010 (as it was then) to say Republicans were engaging in racist tactless was often to speak the truth (and still is today), and DeFrancisco, while not being racist in my view, was at least being patronizing, and perhaps being clueless in whining about the hurdles faced by working class white men like his father, especially since the remarks DeFrancisco so objected to were quite obviously talking about "well connected" white people.
Some will object to the lack of euphemism in Parker‘s choice the of word "racist" (as opposed to some less inflammatory synonym for bigot), which could be called inappropriate and counterproductive, but I will leave that be. In his mind, Parker was calling a spade a spade (perhaps not the best choice of words).
It is the volume of Parker’s remarks that is so striking and disturbing. Committee Chair Carl Kruger, perhaps shocked that such an outburst was taking place in public, rather than behind the closed doors of a Party Conference, suddenly found distressing the sort of Parker cuteness for which he’d previously expressed his enjoyment. He told Parker to calm down and Parker responded rudely. Kruger reprimanded Parker for showing him disrespect.
Now, I am certainly not going to criticize anyone for showing disrespect towards Carl Kruger, but when Kruger told Parker he might need to step outside, and Parker responded that Kruger should bring some people for that, things had clearly gone a bridge too far.
Parker is actually a perfect illustration of a point I‘ve made again and again. Senate sanctions do not necessarily need to be imposed in every case of misdemeanor criminality, but there are other times when they should be imposed for behavior that is not criminal at all.
Parker’s conduct in the DeFrancisco/Kruger incident was certainly not criminal. His conduct in the Savino and Conway incidents was probably not criminal, at most rising to the level of a violation. Details about the incident with the aide (surely in the course of Parker’s duties) and the parking attendant (arguably so) have never really been investigated in a satisfactory manner, but let’s assume for a moment that no criminality was involved.
All (or nearly all) that conduct was both in the course of Parker’s duties, and nearly all was (if accurately reported) ethically reprehensible.
One of these incidents alone might not justify sanction (though I think the Savino incident does, all by itself), but all or some, in combination, when taken together, are probably clear and convincing evidence of a pattern of official misconduct.
On the basis of this conduct, Parker should arguably be expelled from the State Senate, or, at the very least, censured. All of these incidents seem far more important than a conviction for Criminal Mischief , which is not assault (something for which Parker was explicitly acquitted).
If there is any inquiry, it would be a farce if it inquired only into the misdemeanor conviction and ignored these far more important concerns.
But there is also a case to be made against expulsion.
At the time of the Monserrate fracas, a column by the Daily Gotham’s Mole333 did a pretty fair job of summing up the arguments made by Eric Adams and others opposing Monserrate’s expulsion. I’ve supplement Mole’s work with some other arguments made by Adams and Parker, as well as one never made, all of which are also worth considering.
Let’s see how these arguments apply to Parker.
ARGUMENT: "It is unclear whether the State Senate has the legal right under the state constitution to expel Monserrate." [MOLE333, channeling ADAMS]
At the time, this was the best argument made by Adams and company; it was even an argument I made myself.
However, it no longer applies. The courts have ruled. The Senate does have the power.
THE ARGUMENT NOT MADE: I should note that there would have been nothing inherently dishonorable about voting against a Monserrate expulsion, provided the Senator casting such a vote provided an intellectually honest explanation for doing so.
Of course, none of them really did.
The two arguments I found most legit for objecting to Monserrate’s expulsion were the procedural one above, which is no longer available, and the argument that "expulsion was not justified on the merits for a misdemeanor unrelated to the dereliction in some manner of the Senator’s duties of office."
I think this was a highly defensible position. But no one took it.
Of course, in the case of Monserrate, this would have required a Senator to implicitly state that they did not advocate a "Zero Tolerance Policy" towards Domestic Violence, and none of them would do so, preferring like Parker, Adams and Sampson, to spout nonsense or, like Ruben Diaz, to engage in racial rabble-rousing.
Because the argument was never raised, it was never explicitly rejected, though arguably it was rejected implicitly. Moreover, one could conceivably make the distinction that New York State does not have a "Zero Tolerance Policy" towards Criminal Mischief, the crime for which Senator Parker was ultimately convicted.
ARGUMENT: Expelling Sleaze Monserrate would return the State Senate to the paralysis that it saw earlier where Republicans could prevent the legislature from doing anything. [MOLE333, attempting to channel ADAMS, who since he served as part of Monserrate’s rooting section during the trial, presumably does not think Monserrate is a sleaze]
At the time, this argument was already problematic. Could things really get any worse than they already were if the parties were forced to share power?
But frankly, none of that was even relevant.
As I noted then, "If Monserrate’s expulsion is both legally permissible and substantively merited, he should be expelled.
If the both those needles cannot be threaded, then the expulsion should not take place. For anyone to consider this matter from any other perspective is unconscionable."
But even if this were a credible argument then, it no longer applies.
Now that the Republicans have assumed the Senate Majority. Parker’s expulsion would change nothing. It would not throw the Senate into chaos. In fact, given Parker’s record of disruptive conduct, it might make things a little less chaotic.
A more timely argument now would be that Parker’s expulsion could possibly lead to an increase in the number of Senator’s opposing same sex marriage.
This is indeed quite possible. The only question that matters is whether the expulsion itself is merited. People on either side of the question who would premise their vote based on its potential impact on this issue would be acting in serious dereliction of their duties.
ARGUMENT: "[the Senate will have engaged in ] double jeopardy by punishing (Monserrate) a second time." [PARKER]
But surely that makes no sense. If convicted instead of a felony, Monserrate would have lost his seat by operation of law.
Was Kevin saying that that would have been double jeopardy as well?
And when a cop in a case like Amadou Diallo‘s or Sean Bell’s is acquitted of police brutality, because of a finding that his conduct was not criminal, is Parker saying that the officer should then be exempt from departmental discipline (including dismissal) for non-criminal misconduct and/or incompetence (even though that conduct may have or may in the future endanger the public?)
Was Kevin saying that that is double jeopardy too?
ARGUMENT: We should wait, in order to "avoid a judicial merry-go-round, with its interim injunctions and lawsuits…How foolish would we appear were the courts to overturn Senator Monserrate’s conviction after we had already expelled him!" [ADAMS]. "I don't see how it helps this conference or the state of New York to rush to judgment when the legal system hasn't rendered a final verdict," [PARKER]
But, of course, the Select Committee Report made clear that the expulsion was not based upon the conviction.
And, even if it was, it would not have mattered. When someone has been convicted, it is not a "rush to judgment" to implement sanctions. Judgment has been rendered. The legal presumption of innocence ceases to exist the day a person is convicted.
When Assembly Speaker Mel Miller was convicted of a felony, he was forced to forfeit his position by operation of law, even though he appealed it. In fact, HIS APPEAL WAS ULTIMATELY SUCCESSFUL, but he was not restored to his place in the Assembly.
Was Parker advocating a double standard concerning how the legislature treats "final verdicts," or does he think felons should also be allowed to keep their positions until they’ve exhausted their judicial remedies?
Based on this line of objection, Parker voted for a compromise offered by Senator Sampson to postpone Monserrate’s expulsion, pending his appeal.
Luckily, for Parker, the motion he voted for failed. If it had been adopted, it would have set a precedent for by adopting an analysis in which actual conviction for a misdemeanor was dispositive of whether a State Senator could remain in office.
Frankly, I think there is a far better argument to be made for Parker, which I will outline below.
IN THE CASE OF PARKER, THE BEST ARGUMENT IS ONE WHICH DIDN‘T WORK FOR MONSERRATE: "The voters should decide" [MOLE333, channeling ADAMS]
No doubt, This is a serious argument, for the reason that it is a very serious thing for the Senate to substitute its will for that of the voters in the Senator’s District.
But, in the case of Monserrate, it was only technically true.
There are two reasons for this.
The first was that, except in the technical sense, the voters never decided.
Except in the technical sense, there was never even an election.
Monserrate, despite his open flirtations with Joe Bruno and Dean Skelos, and the cries of bloggers who warned about it, was nominated by the Democrats after both the Queens Democratic Organization and the Working Families Party took the incumbent, John Sabini and cut him with the political equivalent of a piece of broken glass (David Paterson then performed the political equivalent of driving Sabini to the hospital, finishing the job on Sabini by giving him a new one).
There was no primary. Nor was there ever a general election.
When I say there was never a general election, I am not merely saying that the November election was a mere farce where the Republicans nominated a placeholder who did no campaigning.
The Republican did not nominate anyone, either living or dead.
Why should they have done so? With an assist from the Governor, the Queens Democratic Organization and the WFP, the Democrats had already nominated the candidate the Republicans wanted.
In November, 2008, the voters of the 13th Senatorial District had four choices.
They could have voted for Hiram Monserrate on the Democratic line. Or they could have voted for Hiram Monserrate on the Working Families line. Or they could have written in a name of their own choice. Or they could have forgone entirely the chance to vote for their State Senator.
40,404 voters chose Monserrate the Democrat. 1,444 chose Monserrate the "progressive." Five voters wrote in other names (two for John Sabini; two for Peter Koo, who was the Republican candidate in an adjoining district; and one for someone named Robert M. Anderson), and 21,382 voted for no one at all.
Please note that high as the last number was, it was of no legal significance. In fact, if instead, Monserrate had gotten only 21,382 on the Democratic line, and 40,404 voters had skipped the race entirely, Monserrate would still have been certified as the victor.
Expelling Monserrate did not take away from the voters of the 13th SD their sacred right to a State Senator of their own choice.
It gave that choice to the voters for the first time.
But even if Monserrate were opposed, that argument would have held limited water.
That is because the assault, the trial and the conviction were intervening events. Had voters known of them before they had voted, the results may very well have been different.
Which is the big sticking point here.
In the case of Parker, there were also intervening events; to wit, a primary and a general election.
In the primary, not only was Parker’s indictment on felony assault charges fully aired, but also aired were each and every one of the incidents where Parker disgraced himself, his office, the Senate, his Party and the State of New York.
The voters then rendered their verdict. 72% of them voted for Parker in the primary, and 78% of them did so in the general election.
I suppose one could argue that this was before Parker’s conviction, but I think that the verdict only makes Parker’s argument stronger.
Before the trial, Parker stood accused of felony level assault. That’s pretty serious stuff. Yet he was renominated and re-elected anyway.
But Parker had now been acquitted of not only felony level assault, but also of misdemeanor level assault.
Parker was convicted only of Criminal Mischief, a crime whose name makes Parker seem like a lovable little scamp, more Bart Simpson than Black Bart.
It seems very likely that had such a verdict been rendered before the election, the voters of Parker’s District would have seen it as Parker’s vindication.
Dumb?
No dumber than voting for him in the primary; maybe even less so.
Though I think the Senate should have expelled Parker in 2009, I think there is nothing inherently dishonorable about voting against a Parker expulsion today.
It may even be the right thing to do. That, in fact, s the way I’m leaning.
However, I do think it would be inherently dishonorable if an inquiry into Parker’s fitness to remain in the Senate does not take place.
I also think it would be a disgrace if Parker got off with anything less than censure.
I leave with one final suggestion.
I’ve been extremely harsh lately on the Senate’s “Independent Democratic Conference.“ Just last week I blasted them for voting for providing the passing votes for the Republican’s sham reapportionment “reform“ legislation.
I’ve been contending that they have in all but name joined the Republican Conference.
Well here’s Diane Savino and Jeff Klein’s chance to prove me wrong.
There is no doubt that Diane Savino has not forgiven Kevin Parker. Moreover, Diane Savino has not forgiven a large portion of the Senate’s Democratic Conference–probably including several members who voted for Monserrate’s expulsion–for fighting against Monserrate’s expulsion behind the closed doors of the Senate’s Democratic Conference.
Doubtless, some of that anger led to the split of the IDC’s members from that conference.
This is one more way to express that anger.
But, far more importantly, Dean Skelos does not want to conduct a Parker Inquiry. Here’s a chance to publicly defy him.
By loudly and clearly calling for a Parker inquiry, not only into the matter of his conviction, but into all of Parker’s issues, the IDC would go a long way into re-establishing their credibility as a force fighting against the failures of both sides of the Senate’s partisan divide.
The time has come for the IDC to put up or shut up.